There’s mounting fall-out from reports, first broken by The Free Press, that a Mitt Romney-linked company owns the Hart Intercivic voting machines used in key counties in Colorado, Ohio and other states. The stories have stoked new fears about a “stolen” election.

UPDATE: Those worries about a rigged election were given new urgency today as The Ohio-based Free Press editor-in-chief Robert Fitrakis, also a Green Party candidate for Congress, announced plans to file a lawsuit later today seeking an immediate injunction against Ohio Secretary of State Jon Husted and the ES&S manufacturer to halt the use of secretly installed, unauthorized “experimental” software in 39 counties’ tabulators in an alleged violation of state election law. His attorney, Cliff Arnebeck, has also referred the case to the Cincinnati FBI for a criminal investigation. Arnebeck says, “It’s a flagrant violation of the law. Before you add new software, you need approval of a state board. They are installing an uncertified, suspect software patch that interfaces between the a county’s vote tabulation equipment and state tabulators.”
He adds, “This is criminal conduct. If they’re not doing something wrong, why are they covering it up?”

As of this writing, this reporter’s phone and email inquiries to the Secretary of State’s office about the planned lawsuit, the FBI criminal referral or allegations of election law violations have not been returned.The Free Press originally reported:

Why did the Ohio Secretary of State Jon Husted’s office, in an end run around Ohio election law, have “experimental” software patches installed on vote counting tabulators in up to 39 Ohio counties? Voting rights activists are concerned that these uncertified and untested software patches may alter the election results… The Free Press has learned that Election Systems and Solutions (ES&S) installed the software patches that will affect 4,041,056 registered voters, including those in metropolitan Columbus and Cleveland (click here for spread sheet from verifiedvoting.org).
A call to the Ohio Secretary of State’s office concerning the software patches was not returned by publication deadline. Previously, the Free Press requests for public records, including voting machine vendor contracts, have been stonewalled by Office Secretary of State John Husted’s office through his public records officer Chris Shea. Through other channels, the Free Press has obtained and has posted the possibly illegal full contract online here (see page 17).

Indeed, these latest allegations will only fuel the Hart Intercivic controversy that has already pushed the issues of voting machine accuracy and tampering, still lampooned by such pundits as Chuck Todd as conspiracy “garbage,” into mainstream news accounts. They’ve been featured in The Washington Post, Christian Science Monitor and Forbes, among others.
The growing concerns and progressive in-fighting over the prospect of an electronically stolen election are perhaps best expressed in Victoria Collier’s high-profile Harper’s Magazine article: “How to Rig an Election.” Whether the election will actually be stolen remains an open question, but there are troubling signs that the mainstream Election Protection alliance , a host of Democratic Party officials and even many in the left-wing “election integrity” movement aren’t paying enough attention to ensuring that state and local election officials actually implement currently available safeguards to accurately count and verify votes.

The result is that a fair election for president is now in jeopardy in the key states of Virginia, Pennsylvania, Florida and Ohio, among others, in part because of the lack of adequate state government preparation, laws or policies to truly ensure an accurate vote — and they’re not facing much outside pressure to do so. The comprehensive Counting Votes 2012 report by Common Cause and Verified Voting showed that only a few states are considered “exceptionally well-prepared” for voting machine problems — but that’s a ranking based on laws on the books, not actual practice.

As one progressive election protection leader told me privately, “Who is watching the election officials [on voting machines]? That’s a good question. Where are the boots on the ground? We don’t have watchdogs on election officials.”

On top of that, prominent leftists, including Noam Chomsky and Tom Hayden, have helped form a new group called No More Stolen Elections. It’s focusing most of its efforts on organizing a post-election day protest if Romney steals the election, a form of defeatism offered under the guise of awareness-raising and protest. They boldly declare: “WE PLEDGE to join nationwide pro-democracy protests starting on the next day, either in my community, in key states where fraud occurred, or in Washington, D.C., and if necessary, to demand a recount, investigation, and criminal prosecutions of those responsible.”
But why don’t they urge their followers to sign up with groups like Pollworkers for Democracy before Election Day to try to prevent election fraud in the first place?
And it’s not at all clear that Democratic Party and Obama campaign officials, allowed inside polling places as partisan observers under state election laws, will be carefully monitoring voting machine practices, either. Will they, for instance, follow Brennan Center- recommended guidelines to guarantee that the ballots cast in precincts match the number of voters who signed in or that machines and their vote counts are handled securely?

Democrats were widely seen as missing in action in 2004, especially in Ohio, but selectively more aggressive in 2008, fueled by the fresh enthusiasm for Obama and their eagerness to protect the vote.
Now Democrats are either silent about their plans or offer only relatively vague reassurances. “I have confidence in the count, my lack of confidence lies in other areas,” says Caleb Faux, the executive director of the Hamilton County Democratic Party, citing the threat posed by Tea Party-trained official poll workers and assorted other vote-suppressing schemes in Ohio.
He simply isn’t worried about the reliance of his county election board exclusively on Hart Intercivic machines. He’s remains “comfortable” with them although they were faulted as easily hacked in the 2007 Secretary of State-ordered “Everest” report, and haven’t been improved since then, as Salon reported. He also strongly disputes the claims, in The Free Press and elsewhere, that the private equity firm linked to Romney, H.I.G., could influence the election outcome after buying Hart Intercivic — because, he says, the machines and software were purchased in 2006. “Bain and Romney are not going to get involved,” he says. He also contends that all repairs on machines and software owned by the Hamilton County board are carried out by board staff, not private contractors.
When it comes to voting machines, the Democratic leader in Hamilton County is apparently echoing all the questionable claims of the election board’s Republican supervisor, Amy Searcy, an ally of the Tea Party and Vice Chair of the Hamilton County Republican Party. The Free Press has observed: “She seems to be well positioned to be the Kathleen Harris of Cincinnati in the 2012 presidential election.”
In contrast to Caleb Faux’s assertions, The Free Press reported recently, “A statement that Hart has nothing to do with the voting machines in Hamilton (Cincinnati) or Williams counties in the key swing state of Ohio is simply incorrect. Not only does Hart Intercivic have contracts to maintain some of their voting machines, but in Hamilton and Williams counties the tabulation software which will be used to count the votes on Election Day is also made and maintained by Hart, according to public records.”
At the national level, while a party spokesman declined to comment, a former DNC consultant offered soothing reassurances about the party’s promised vigilance this year — based on the Obama campaign’s 2008 actions. “I can promise you that there was extensive attention to best practices for machine setup and testing in 2008,” he told me, although omitting any such claims for ballot counting and verification. He discounted the over 1,800 machine errors reported to Election Protection in 2008 as largely one-time glitches, quickly resolved. “Don’t mistake a lack of publicity for a lack of attention, ” he added. “I have no reason to believe that the approach has changed.”
In some ways, at least in Ohio in 2008, the Obama campaign was nearly as active in monitoring voting systems as they claim, according to two surprising observers: Harvey Wasserman and Robert Fitrakis, The Free Press editors who are hardly Democratic Party shills. Yes, they’ve written, “We can’t count on the Democratic Party to do much about this [stolen votes].” But Fitrakis, for one, says an Obama staffer moved in to his home to prep for election protection in 2008 and Fitrakis, in turn, was able to join in recruiting “hundreds” of Obama volunteers to serve as Green Party polling place observers and “Video the Vote” monitors throughout Ohio. “The Obama campaign was afraid to admit publicly how concerned they were…But they were vigilant.” he recalls. In contrast, “The Democratic Party seemed to be clueless.”
As a Green Party candidate for Congress this year, his campaign and The Free Press are again recruiting Green Party and “Video the Vote” observers. He’s also created an in-depth observer’s guide for polling place volunteers that incorporates several of the national “best practices” in voting machine monitoring; the Green Party observers’ guide is so Ohio-specific that it hasn’t been posted online yet. But there’s a big difference between this year’s election integrity drive and 2008. Nobody involved in the Obama campaign’s election integrity team has reached out to him or The Green Party to collaborate, he says.
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What’s particularly striking this year is that there may be a statistically sound method to sample ballots to verify the outcome in Hamilton County, across the state of Ohio and in any other state with paper records or ballots. But practically no one’s heard of this elegant “ballot-polling” technique, the voting verification equivalent of the E=MC2 formula, pilot-tested last year in just one California county. It’s considered important enough that election officials in Ohio and other states are now reviewing it, but no one’s committed to using it yet for this bitterly divided 2012 election– in large part because of an absence of public pressure or awareness. Ironically, the same GOP partisan, Jon Husted, attacked as a nefarious vote suppressor has also issued one of the more progressive rulings in the country on using audits to determine an accurate vote count — including allowing any of the hotly contested counties in Ohio to use this cost-effective method to confirm voting results.

A more complex version of what Verified Voting calls the “gold standard” of auditing is already going to be used in the Cleveland area, Cuyahoga County, because of failed scanning machines there. Although it can’t be used to precisely measure the exact numbers of vote cast, this new, even simpler ballot sampling technique quickly determines whether the correct winner was selected, “It adds a lot of confidence to the vote,” says Philip Stark , the chairman of U.C. Berkeley’s statistics department and developer of the method endorsed by Common Cause, Verified Voting and the American Statistical Association.

The narrower the vote margin, the more hand-counted ballots have to be pulled and counted according to this audit’s formula. Yet if there was a one percent difference in a Romney-Obama race in Ohio out of, say, five million or so votes cast,, this method would require even the biggest urban counties to sample roughly 11,000 or less votes each. Fortunately, the counting stops when it becomes clear that the voting machines results were either right or wrong in picking a winner.
Amazingly, if the margin of the declared winner is wide enough, as a survey of 255 state presidential elections between 1992 and 2008 found, the declared winner could be verified or disproven with a median sample size of just 307 hand-counted ballots across an entire state. It’s a simple-to-use version of what’s called a “risk-limiting” audit, and it’s based on an update of a well-proven mathematical algorithm in sampling theory. Stark likens the approach to an exit poll that involves sampling ballots, not voters.

He adds, “Another analogy is: if you want to know if a pot of soup is too salty you can stir it and then sample just a teaspoon to taste it.”

Throw in some dice to start generating a 20-digit random number, a scratch pad and a calculator, and, presto!, counties in Ohio and elsewhere county could be well on their way to verifying votes even on today’s flawed machines.
Surprisingly, Husted has already issued a little-noticed directive in February, 2012 that actually offers voting integrity activists and election boards an opportunity to better verify the accuracy of the election outcomes in such critical counties as Hamilton, home of Cincinnati — even with those dubious Hart Intercivic machines. In fact, Husted’s relatively generous 5 percent minimum hand-counted auditing requirement won’t likely be able to detect subtler, smaller-scale machine failures in a high-turnout, very close election.

“It’s a good thing that you can look at a lot of ballots,” Stark points out, “but it doesn’t answer the right question. If there’s a big problem with the machines, it will notice that. But the more important question is: `Did we get the right answer?’ If the margin of victory is small, even 5 percent of the ballots cast won’t tell you that.”

County board of elections are now free to use these more advanced techniques if they make a request before Election Day to the Ohio Secretary of State, who has authorized their use. Such sophisticated but easy to implement methods could mean that they could serve as a double-check on Husted’s latest gambit: he has okayed the use of unauthorized, experimental software “patches” that critics suspect might rig elections, as The Free Pressreported this week. But, the easy-to-use “ballot polling” technique to randomly sample paper ballots and records could spot even potential small-scale “red shifting” fraud. Of course, that won’t happen unless election boards or the Secretary of State’s office face outside pressure across the political spectrum to implement the higher quality, risk-limiting audits that Husted has initially okayed. Even some Republicans might want an outcome that the public can trust, given the controversies over voting machines in Ohio.

But there’s a political stalemate at work that means that few short-term solutions are considered when the voting machine issue is so polarized. Most mainstream advocacy groups, the two major political parties and conventional media outlets generally don’t care about voting machine accuracy. In turn, the voting integrity movement has become so marginalized by its controversial, if well-researched, insistence that the 2002 and 2004 presidential elections were stolen by mastermind Karl Rove, and that all types of electronic voting machines are so easily rigged and unreliable that they should be scrapped. In this climate, moderate, incremental reforms like the now-dead voting machine reform legislation sponsored by Rep. Rush Holt (D-NJ), or Professor Stark’s handy auditing method don’t stand much of a chance.
At the same time, as Harvey Wasserman and others contend, it’s not really fair to blame the messenger of failed machines and rigged elections for the lack of meaningful reforms. “It doesn’t matter how you present it,” he says of he largely indifferent or even hostile response from public officials, Democrats and many progressives. “They can’t face the reality that it challenges their presumption that this is a democratic system.”

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Only a few mainstream, respected organizations — led by Common Cause,NYU’s Brennan Center and Verified Voting, with its roots in the election integrity movement — have paid any serious, sustained attention to voting machine accuracy and reliability.

The Advancement Project has also played a vital role in lobbying state governments and local election boards in key states to provide sufficient supplies of working voting machines and emergency ballots. “We’re focusing on adequate resources, but we’re not taking on the battle of voting machine accuracy,” says senior election protection attorney Denise Lieberman.

That’s why the voting integrity initiative of The Free Press editors Wasserman and Fitrakis has potential national significance, even if it’s a relatively small, shoe-string operation. They’re not limiting themselves to rhetorical alarms about stolen elections, but also seeking to implement pragmatic checks-and-balances in close monitoring of election officials’ handling of voting machines and results. It’s work that Democratic Party officials should be doing, but with Obama campaign general counsel Bob Bauer, who heads the election protection “Victory Counsel,” reportedly skeptical about the dangers of failed or rigged machines, they too often don’t do so. Bauer, in fact, headed up the Democrats limp 2004 “election protection” operation. Wasserman is recruiting citizen volunteers to monitor the vote count and machine technicians along with his colleague Robert Fitrakis’s Green Party observer program.
In addition, scattered amalgam of liberal election protection and integrity groups are recruiting people to be local poll workers and outside observers, but it is not a large-scale operation training people in voting system monitoring.
Such monitoring will be especially needed in such “toss-up” states as Pennsylvania and Virginia, where a total ten million people in both states can only vote at polling places on paperless, touch-screen machines. In fact, according to computer expert Barbara Simons, author of Broken Ballots , Virginia seems ready to be ” the next Florida –only worse.” “At least in 2000 there were paper ballots to recount in Florida,” she writes. ” But only seven out of 134 Virginia localities [counties and cities] do not use paperless Direct Recording Electronic (DRE) voting machines.” Voters there even have to vote on some machines banned in other states, she notes.

Even more troubling, she points out, “The inadequate system of ballot accounting and reconciliation for DREs needs to be fixed. Currently, if the number of cast ballots recorded by the DREs exceeds the number of voters who signed the poll books, the DREs are assumed to be correct (emphasis added). This irrational practice could lead to ballot box stuffing and should be outlawed.”
But in the most critical swing county in the state, ethnically diverse Prince William County, relying solely on paperless voting machines, the Democratic Party’s leaders aren’t really worried. Henry Wiggins, the local party’s executive director, says, “We’re limited in what we can do,” adding, “I’ve never seen a problem.” “If something of a gross magnitude happens, we’d notice it,” he says, but he is more concerned about the dangers posed by voter-fraud scare mongering and deceptive fliers targeting Hispanics.
The glittering electoral prize of Florida, even with required paper ballots, could also be jeopardized. With its governor and Secretary of State determined to limit Democratic consitutiencies from voting, the state also has a notoriously weak auditing law. On top of that, any outside monitoring of its error-prone optical scan machines (widely used there and around the country) and election procedures is spotty at best.

Equally troubling, an astouding 25 states now allow overseas military and traveling citizens to vote by email and e-fax easily hacked and fabricated overseas ballots. The risk has only been heightened by the role of the shadowy Barcelona-based company, Scytl, slated to count votes in 26 states, as chronicled by The Free Press and former Rove operative Jill Robinson. It’s not just activists who are alarmed: A few days before the District of Columbia was set to adopt such an e-vote system in 2010, a hacker demonstration team switched all the votes to its favored candidates in a test, leading to the system being scrapped.
Despite the risk of stolen elections in Virginia, Florida and other states, one of the people most concerned about vote theft, Ohio attorney Cliff Arnebeck, believes that Karl Rove and his GOP allies are less likely to get away with it this time around. He has gathered damaging information for lawsuits and public awareness campaigns about Karl Rove’s alleged behind-the-scenes role in rigging elections and voting machine results. “The dramatic difference between 2004 and 2012 is that Karl Rove doesn’t control the White House, doesn’t control the Justice Department and doesn’t have all the things in place to intimidate, distract and divert,” he says. Pointing to a quashed FBI investigation of Ohio election fraud in 2004, he cites optimistically a U.S. Department of Justice announcement that it will prosecute not just illegal voter suppression, but election fraud as well. If the cybersecurity unit of the FBI is involved, he believes, then “Karl Rove would be foolish to unleash his cyber attack team in this election.”
So, it’s possible that the 2012 election might not turn out to be rigged after all.

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This story is scheduled to be cross-posted at The Free Press that is featuring ongoing coverage of the latest Ohio and national election system controversies.

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